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________________________
No. ACM 4 0 250

________________________
UNITED STATES Appellee

v.
Charles S. NESTOR Techni cal Sergeant (E

- 6 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary

Decided 30 June 2 02 3

_______ _______ __________ Military Judge: Matthew P. Stoffel

. S entence : Sentence adjudged on 8 October 2 021 by G CM convened at Ka dena Air Base, Japan . Sentence entered by military judge on 2 November 2021 : Dishonorable discharge
, confinement for 1 6 months
, and reduction to E

- 1

. For Appellant: Major David L. Bosner , USAF

. For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; M ajor Morgan R. Christie, USAF ; Captain Olivia B. Hoff, USAF; Mary Ellen Payne, Esquire

. Before RICHARDSON
, CADOTTE , and ANNEXSTAD
, Appellate Military Judges

. Judge ANNEXSTAD delivered the opinion of the court, in which Senior Judge RICHARDSON and Judge CADOTTE joined.

________________________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30. 4

.

________________________ ANNEXSTAD, Judge:United States v. Nestor , No. ACM 4 0 2 50

2 A t a general court

- martial
, a panel of officer and enlisted members convicted Appellant , contrary to his pleas, of one specification each of wrongfully possessing and distributing child pornography in violation of Article 1 34
, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 9 34

. 1 A military judge sentenced Appellant to a dishonorable discharge , confinement for 16 months, and reduction to the grade of E

- 1

. The convening authority took no action on the
sentence. Appellant raises s even issues which we have reordered and reworded: (1) whether the military judge abused his discretion when he permitted the G overnment to introduce certain character evidence under Mil . R. Evid. 404(b) ; (2) whether the military judge committed revers i ble error in his instruction s to the members ; (3) whether Appellant ’ s conviction for possession of child pornography (Specification 1) is legally and factually sufficient ; ( 4 ) whether Appellant’s conviction for distribution of child pornography (Specification 2) is legally and factually sufficient ; (5) whether the findings of guilty constituted an unreasonable multiplication of charges; (6) w hether Appellant’s convictions of S pe cifications 1 and 2 are legally and factually sufficient as to the terminal element ; and (7) whether Appellant is entitled to a unanimous verdict under the Fifth and Sixth Amendments

. 2
, 3 With respect to issues (5), and (7), we have carefully considered Appellant’s contentions and find they do not require discussion or warrant relief. See United States v. Matias , 25 M.J. 356, 361 (C.M.A. 1987)

. We consolidate issues ( 3 ) , (4), and ( 6 ) since they concern the legal and factual sufficiency of both specification s

. We find error and provide relief for issue (4) . We affirm the remaining findings of guilty and the sentence
, as reassessed.

I. B ACKGROUND
A s part of a Joint Crimes Against Children Task Force in June of 2020, Naval Criminal Investigative Service (NCIS) investigators discovered Appellant’s use of an Internet p rotocol (IP) address associated with suspected child pornography

. NCIS Special Agent (SA) GH described at trial how he used investigative pee r

- to

- peer software to search for child pornography on a

1 A ll references to the UCMJ
, the Military Rules of Evidence , and the Rules for Court s

Martial are to the Manual for Courts

- Martial, United States (2019 ed.).

2 U.S. C ONST

. amend. V and VI.

3 On 29 March 2023, Appellant withdrew one additional issue for our consideration alleging that the record of trial was incomplete.United States v. Nestor , No. ACM 4 0 2 50

3 particular peer

- to

- peer file sharing network. 4 He explained that peer

- to

- peer file sharing networks rel y on individual users to download and share files , and that w hen a user downloads a file using p eer

- to

- peer software , the software by “default” automatically begins sharing the file

— or pieces thereof

— with other network users.
SA GH testified he used peer

- to

- peer software designed specifically for law enforcement agents (modified software) to conduct an undercover child pornography investigation on 23 June 2020 . He explained that the modified softwar e differed from the publicly available software (standard software) in sev eral respects, including two features significant to this case . First
, unlike the standard software , the modif i ed software d id not share any downloaded files

. Second, the modified software connect ed to only one IP address at a time

— meaning the entire file is downloaded from one individual instead of pieces of a file from many. Using th ese features
, SA GH download ed a suspected child pornography video from an IP address in Okinawa, Japan

— belonging to Appellant

— which was serviced by a local Japanese Internet service provider (ISP)

. The downloaded video
, hereinafter referred to as the spanking video, was admitted as a prosecution exhibit 5 at trial and SA GH described it as follows:

It depicts a

– it’s a living room

- type setting, what looked like appeared to be an ottoman. There was a

– what appeared to be a low

- teen, preteen child bent over, couldn’t tell if it was male or female , w ith what appeared to be an adult, white male, spanking the unclothed bare bottom of the other individual.

SA GH sent a request to the Japanese ISP to determine the registered owner of the IP address in question

. The Japanese ISP responded with “Tech Sergeant Charles Nest o r” and provided the registered owner’s work location. A fter identif

ying Appellant as an Air Force member
, SA GH turned over the investigation to the Air Force Office of Special Investigations (AFOSI)

. On 9 July 2020, AFOSI, led by SA JR, along with Okinawan police
, obtain ed a search authorization for Appellant’s off

- base residence where they subsequently seized 27 electronic devices , including
, i nter alia

, a Lenovo laptop and a ThinkPad laptop

. T he devices were sent to the Department of Defense Cyber Crime Center Cyber Forensics Laboratory (DC3/CFL) for analysis
, where it was determined tha t Appellant was the registered owner and a

4 Without objection , the military judge recognized S pecial A gent GH as an expert in the fields of “ digital forensics ” and “peer

- to

- peer software .”

5 The video was admitted as Prosecut ion Exhibit 5.United States v. Nestor , No. ACM 4 0 2 50

4 regular user for both laptops

. It also revealed Appellant had password

- protected both laptops
, and they bo th contained evidence relevant to the question of whether the Appellant knowing ly possessed child pornography and knowing ly distributed a child pornography video between December 2019 and July 2020. 6

Mr. TB, a cyber forensics examiner from DC3/CFL
, conduct ed the forensic analysis on Appellant’s two laptops and testified at trial as an expert in the field of digital forensics

. Mr. TB testified that he discovered

— in a subfolder located on the Lenovo laptop

— a commercially produced foreign film entitled “Maladolescenza
, ” which featured three different minors engaging in sexually explicit conduct . He also found two additional videos depicting a preteen girl masturbating with a water faucet in a bathtub

. Mr. TB stated these files were downloaded u sing Appellant’s user profile beginning in December 2019 and all the files had to be specifically placed in the subfolder by Appellant

. Mr. TB further t estified the Lenovo laptop contained : (1) 28 additional files with file names indicative of child pornog raphy ; and (2) 72 other movies or video files “ that contained scenes with children , at some sta g e [of] undress [ ]
, ” including videos depicting what appear ed to be children changing clothes at a beach house, showering, and engaging in sexual activity

. In addition to items (1) and (2)
, supra , Mr. TB stated that he discovered three additional video clips of scenes sp l iced together in VLC media player that exhibited a child in some stage of undress, including an adult female bathing a nude pre pubescent female and a teenage male and female who are both topless

. He stated two of the three video clips were recorded s cenes from a com m ercially produced German

m ovie and the video c lips captured the limited scenes in the film where a child

was undressed to some degree

. In addition to the Lenovo laptop, Mr. TB also testified that he found 97 deleted files with file names indicative of possible child pornography on the ThinkPad laptop data drive

. He stated that w hile he could still see the filenames, the files themselves were empty . Mr. TB indicated t he filenames included “preteen hardcore” and explicit and lascivious reference s to sexual acts involving minors. He also s tated that the operating system on Appellant ’s computer, based on Appellant’s interaction with the files, had created shortcut links to filenames in his “recent” folder containing the term “preteen hardcore”

w h ere additional filenames suggesting child pornography were also discovered

. Mr. TB explained that in order to create the shortcut link , the user would have

6 The rest of the devices seized from Appellant’s residence contained no relevant information concerning the charged offenses.United States v. Nestor , No. ACM 4 0 2 50

5 opened the files at one point in time. He also stated that the g lobally u nique identifier (GUID) for the standard software on the ThinkPad was the same GUID listed by NCIS for the standard software from which the spanking video was obtained. Finally, Mr. TB confirmed the files were downloaded on both lap tops between Dec ember 2019 and July 2020 , but later deleted. Contrary to his pleas, a panel of officer and enlisted members convicted Appellant of one specification of knowingly and wrongfully possessing child

po r nography , and one specification of knowingly and wrongfully distributing child pornography.

II. D ISCUSSION
A. Mil. R. Evid 404(b) Appellant argue s the military judge abused his discretion by permitting the Government to introduce character evidence under Mil. R. Evid. 404(b)

. We find that the military judge did not abuse his discretion and that A ppellant is not entitled to relief.

1. Additional Backgr ound

On 29 Ju ly 2021, the Defense submitted a request for a bill of particulars to the Government. Specif i cally, the D efense requested a list of the media filenames that the G overnment wa s alleging were child pornography and in Appellant’s possession . On 9 August 2021, the Government responded with a chart containing 41 total filenames. On 1 October 2021, the Government amended its response by adding one more filename to the chart for a total of 42 files . These 42 files consisted of the three videos taken from the Lenovo laptop, one video taken from the Thinkpad laptop (the spanking video) , and 38 other filenames that were in the recycling and recent folders on the Thinkpad laptop. 7 On 11 August 2021, the Government provided the Defense with notice of its intent to offer evidence under Mil. R. Evid. 404(b). On 2 October 2021 , two days b efore trial the Defense moved to exclude certain material from being offered under Mil. R. Evid. 404(b). T he Government opposed the motion. The evidence the Governmen t sought to introduce under Mil. R. Evid. 404(b)
, forthe purpose of showing that Appellant had knowledge of possession and distribution of child pornography, included: (1) 28 child erotica videos and a foreign movie featuring scenes of unclothed children that were found on Appellant’s

7 The video s from the Lenovo laptop included the “ Maladolescenza” video and the two videos depicting a preteen girl masturbating in a bathtub.United States v. Nestor , No. ACM 4 0 2 50

6 Lenovo laptop ; (2) e vidence that Appellant possessed short VLC clips of scenes involving nude minors from various movies on his Lenovo laptop ; and (3) an additional 97 deleted files with filenames indicative of child pornogra phy on Appellant’s ThinkPad laptop

. On 4 October 2021, the military judge receive d additional evidence and hear d arguments on the motion during an Article 39 ( a ) , UCMJ, 10 U.S.C. § 839 ( a )
, session

. During argument, Government counsel clarified that evidence found on Appellant’s laptops included the 42 charged files as well as files they were attempting to offer under Mil R. Evid. 404(b)

. On 5 October 2021, the military judge issued a written ruling d enying the d efense motion.

a. Child Erotica

We first a ddress the 28 files of child erotica found on Appellant’s Lenovo laptop . The military judge determined the Lenovo laptop was owned and regularly used by Appellant ; had one user

- created profile with a username of “Charl”

— the first portion of Appellant’s name ; the files were found on a device seized from Appellant’s residence ; and “ there [ was ] no indication that Appellant did not have access to the device at the time files were dow nloaded .” Furthermore
, the military judge determined the only other occupants in Appellant’s residence were his wife and two daughters. Th e military judge stated the evidence reasonably support ed Appellant’s possession and viewing of these files.

The military judge also determined the evidence was relevant to Appellant’s knowing possession and distribution of child pornography, in that it may establish Appellant’s sexual interest in minors , particula rly minors engaged in sexual conduct, and that Appell ant had a motive to have the files in his possession. He also found the filenames were relevant circumstantial evidence that Appellant knew he possessed child pornography. T he military judge found the probative value of the evidence was high due to th e lac k of other evidence in the case supporting Appellant’s know ing possession and distribution. H e found the danger of unfair prejudice was moderate , due in part to the number of files that contained alleged child erotica (28) as compared to the small number o f files that contained alleged child pornography (3)

— that is , the “Maladolescenza” film and two videos of a preteen girl in a bathtub. The military judge concluded
, “Put more finely, the evidence contained in each [erotica] video file will become somewhat cumulative at a certain point, such that the danger of unfair prejudice may reach the point of substantially outweighing the collective probative value of the evide nce .

. . .”United States v. Nestor , No. ACM 4 0 2 50

7 b. VLC Video Clips
Next, we consider the three VLC video clips found on Appellant’s Lenovo laptop indicating that Appellant spliced together movie clips of children in various stages of undress. The military judge found evidence support ed a findi ng that Appellant used video editing software to compile short video clips of scenes involving nude minors. Consistent with his analysis of the child erotica, and supported by the testimony of Mr. TB, t he military judge found that Appellant was responsible for either creating these clips using VLC software
, or possessing these clips found on his computer. Again the military judge stated the evidence was relevant to the issue of whether Appellant knowingly possessed and distributed child pornography . The mil itary judge determined the probative value of the evidence was high as it demonstrate d that Appellant had knowledge of the content of at least some of the files in question at or near the time the child pornography was downloaded on to his devices. The mili tary judge assessed the danger of unfair prejudice from this evidence to be low

.

c. File n ames of Deleted Files Concerning the 97 delete d file s with filenames indicative of child pornography found on Appellant ’ s ThinkPad laptop data drive , the military judge incorporated the analysis above that the evidence indicated Appellant possessed files indicative of child pornography between Dec ember 20 19 and July 2020 on his computer

. He also concluded the evidence was relevant as it may demonstrate that Appellan t had a sexual interest in minors, which would make his knowing possession and distribution more likely. He also determined that the fact the files were deleted went to the weight of the evidence . The military judge found the probative value of this eviden ce was moderate , noting that while the contents of the files would have offered a higher probative value
, there was probative value in that the deleted files were located on the same laptop as the video downloaded by law enforcement using the modified software. The military judge assessed the danger of unfair prejudice as low to moderate , and ultimately c onclud ed that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence.

2. Law A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403 will not be disturbed except for a clear abuse of discretion. United States v. Morrison , 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). “A military judge abuses his discretion when: (1) the findings of fact upon which he predicates his ruling are not supported by the evidence of record; (2) [ ] incorrect legal principles were used; or (3) [ ] his application of the correct legal principles to the facts is clearly unreasonable.” United States v. Ellis , 68 M.J. 341, 344United States v. Nestor , No. ACM 4 0 2 50

8 (C.A.A.F. 2010) (citing United States v. Mackie , 66 M.J. 198, 199 (C.A.A.F. 2008) (per curiam) ). Stated another way , an abuse of discretion occurs when the military judge’s decision is “ outside the range of choices reasonably arising from the applicable facts and the law.” United States v. Miller , 66 M.J. 306
, 307 (C.A.A.F. 2008) (citation omitted)

. Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act by a person is not admissible as evidence of the person’s character in order toshow the person acted in conformity with that character on a particular occasion . Moreover, it cannot be used to show predisposition toward crime or criminal character. United States v. Staton , 69 M.J. 228, 230 (C.A.A .F. 2010). However, such evidence may be admissible for another purpose, including to show, inter alia , motive, intent, plan, absence of mistake, or lack of accident. Id

. ; Mil

. R. Evid. 404(b)(2)

. The list of potential purposes in Mil. R. Evid. 404(b)(2) “is illustrative, not exhaustive.” United States v. Ferguson , 28 M.J. 104, 108 (C.M.A. 1989). We apply a three

- part test to review the admissibility of evidence under Mil. R. Evid. 404(b): (1) Doe s the evidence reasonably support a finding by the factfinder that Appellant committed the other crime, wrong, or act? (2) Does the evidence of the other act make a fact of consequence to the instant offense more or less probable? (3) Is the probative valu e of the evidence of the other act substantially outweighed by the danger of unfair prejudice under Mil. R. Evid. 403

. United States v. Reynolds , 29 M.J. 105, 109 (C.A.A.F. 1989) (citations omitted). “If the evidence fails to meet any one of these three st andards, it is inadmissible.” Id. Concerning the third Reynolds prong , our superior court has instructed that “ the military judge enjoys wide discretion when applying [the] Mil

. R. Evid. 403 ” balancing test

. United States v. Tanksley , 54 M.J. 169, 176 (C.A .A.F. 2000) (internal quotation m arks and citations omitted )
, overruled in part on other grounds by United States v. Inong , 58 M.J. 460 (C.A.A.F. 2003)

. The y have also made clear that they will e xercise great restraint in reviewing the decision and w ill give the decision maximum deference in determining whether there is a clear abuse of discretion when a military judge conducts Mil. R. Evid. 403 balancing on the record

. Id. at 176

– 77

. 3. Analysis

On appeal, Appellant contends that the military judge ’ s application of legal principl e s to the facts was unreasonable. Specifically, Appellant argues the military judge reached the wrong conclusion concerning the third prong of the Reynolds test in finding the evidence’s probative value was not substantiallyUnited States v. Nestor , No. ACM 4 0 2 50

9 outweighed by the danger of unfair prejudice

. We find that the military judge did not abuse his discretion

. In his written ruling , the military judge applied the first Reynolds prong

— whether the evidence reasonably support ed a fin din g that Appellant engaged in other acts

— and was satisfied the factfinder could reasonably determine Appellant was the person responsible for possessing the child erotica, video clips, and the deleted file s found on the two devices that he owned and regularly used. We find the military judge’s factfinding on the first Reynolds prong was supported by the evidence of record . Thus, we conclude that the military judge properly applied the first Reynol ds prong.
The mil itary judge applied the second Reynolds prong

— whether the evidence of the other acts makes a fact of consequence to the instant offenses more or less probable

— and found the uncharged acts were evidence of Appellant’s sexual interest in minors and motive to have the files in his possessio n. The military judge properly recognized that primary fact s of consequence in this litigated case were Appellant ’s k nowing p osse ss ion and distribut ion of child pornography

. Evidence of A p pellant’s sexual interest in child ren, his possession of child erotica, video clips of children in various stages of undress , and deleted files with filenames indicative of child pornography made the fact s that Appellant knowingly and wrongfully possessed child pornography more probab le

. Thus, we conclude that the military judge’s appl ication of the second Reynolds prong was not clearly unreasonable. Applying the third Reynolds prong , the military judge found the probative value of the evidence was not substantially outweighed by the d anger of unfair prejudice. Here, the military judge provided written assessments of both the probative value and the potential prejudice on each of the individual pieces of uncharged evidence the Government sought to introduce. Exer cising great restraint a nd providing maximum deference to the military judge ’s decision
, we find the military judge ’ s written analysis is not outside the range of choices reasonably arising from the specific facts of this case and the law. See Miller
, 66 M.J. at 307.

T he military judge did not abuse his discretion in ruling the evidence that Appellant possessed 28 files of child erotica and spliced VLC clips showing children in various stages of undress
, and that his laptop showed filenames of delete d files that were indicative of child pornography , was admissible for the limited purpose s of show ing Appe llant ’s intent and motive to knowingly possess and distribute child pornography

. His findings of fact were supported by the record and therefore were not clearly erroneous. Appellant has not shown the military judge incorrectly applied the law or that his ruling was arbitrary,United States v. Nestor , No. ACM 4 0 2 50

10 fanciful, clearly unreasonable, or clearly erroneous. See United States v. Shields , ___ M.J. ___, No. 22

- 0279, 2023 CAAF LEXIS 270, at *9 (C.A.A.F. 28 Apr. 2023) (articulating abuse of discretion standard); see also Morrison , 52 M.J. at 122

. B. Military Judge ’ s Instructions Appellant claims the military judge erred by providing a list of c harged filenames that the Government alleged constituted child pornography in his instructions to the members . He claims that this instruction created confusion between which files were charged and which files were admitted sole l y pursuant to Mil. R. Evid. 404(b). We find Appellant waived any objections to the military judge ’ s instructions and we are not persuaded to pierce waiver in this

case

. 1. Additional Background During an Article 39 ( a ) , UCMJ, session concerning instructions, the military judge asked trial counsel if there were “ any additional requests for specialinstructions” other than an unopposed request for an instruction on the definition of “masochism.” To alleviate a concern expressed by trial defense counsel
at an earlier hearing regarding th e particular files meeting the definition of child pornography, trial counsel suggested highlight ing the files on two prosecution exhibits

— 14 and 15

— which would clarify what files the Government allege d met the definition of child pornography. The Government further suggested tha t highlighting the charged files would also clarify to the members that the non

- highlighted files in the two exhibits were the uncharged files admitted only for Mil. R. Evid. 404( b) purposes . The military judge responded that he would rather provide the members with only a list of the charged files in his instructions. Trial defense counsel did not object or propose an alternative course of action to the military judge’s proposal. During a recess after discussing instructions, the military judge conducted

a Rule for Courts

- Martial ( R.C.M. ) 802 conference with counsel. Back on the record, t he military judge described that during the conference both “counsel requested some clarificati on as far as the court’s expectations as it relate [ d ] to the [P] rosecution’s request to how best to identify what they are alleging as child pornography.” Trial defense counsel did not voice a desire to supplement the military judge ’ s summary of the confer ence, nor did they raise any issues or lodge any objections with respect to the identification of the charged child pornography. The military judge then indicated that he was going to take a long recess to finalize the instructions and would provide the instructions to the parties for review. The military judge referenced trial counsel’s request to include the specific filenames in the written instruction: “ A s we had discussed,United States v. Nestor , No. ACM 4 0 2 50

11 I believe trial counsel indicated they were going to provide files, filenames that are at issue in this case to the court, to include in the written instructions. I’ll be sure to include those once I receive them.” Trial defense counsel again did not object, raise any issue, or lodge any objections to the military judge ’ s proposed plan to insert the filenames in his written instruction s to the members

. The military judge then asked trial defense counsel, “ [A] re there any other matters that we need to take up regarding instructions?” Trial defense counsel responded, “No, Y our H onor.” Subsequently, both trial and trial defense counsel had an opportunity to review the final instructions. Trial defense counsel did not express any objection to the list of filenames in the instructions. The military judge provided the members a list of 42 filenames that the Government alleged met the definition of child pornography. After reading the instructions, and before the members retired to deliberate, the military judge asked, “Do counsel object to the instructions given or request additional instru ctions?” Trial defense counsel responded, “No, Your Honor.”

2. Law “Failure to object to an instruction or to omission of an instruction beforethe members close to deliberate forfeits the objection.” R.C.M. 920(f). We review forfeited issues for plain error. United States v. Davis
, 79 M.J. 329, 331 (C.A.A.F. 2020). “[T]o establish plain error an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of the appeal, and (3) prejudicial.” United States v. Long , 81 M.J. 362, 369

– 70 (C.A.A.F. 2021) (internal quotation marks and citation omitted).

In contrast to forfeiture , an appellant waive s a right to raise the issue onappeal where he “affirmatively declined to object to the military judge’s instructions and offered no additional instructions

. ” Davis , 79 M.J. at 331. “Whether an appellant has waive d an issue is a legal question we review de novo.” Id

. Generally , an affirmative waiver leaves “nothing left” to correct on appeal. Id

. However, p ursuant to Article 66(d) (1) , UCMJ, Courts of Criminal Appeals (CCA s ) have the unique statutory responsibility to affirm only so much of the findings and sentence that they find are correct and “should be approved.” 10 U.S.C. § 866(d) (1). This includes the authority to address errors raised for the first time on appeal despite waiver of those errors at trial. See, e.g. , United States v. Hardy , 77 M.J. 438, 442

– 43 (C.A.A.F. 2018). A CCA assess es the entire record and determine s “whether to leave an accused’s waiver intact, or to correct the error.” United States v. Chin , 75 M.J. 220, 223 (C.A.A.F. 2016) (citation om itted)

.United States v. Nestor , No. ACM 4 0 2 50

12 “The military judge has an independent duty to determine and deliver appropriate instructions.” United States v. Ober , 66 M.J. 393, 405 (C.A.A.F. 2008) (citing United States v. Westmoreland , 31 M.J. 160, 163

– 64 (C.M.A. 1990)). 3. Analysis

The threshold question is whether Appellant preserved, forfeited, or waived his allegation of error in the military judge’s instructions

. Trial defense counsel did not object to the challenged instructions , even when the military judge asked, so the issue was waived , and we decline to pierce that waiver. The military judge involved counsel in the drafting and tailoring of his instructions. H e listened to the concerns of counsel and determined what type of i nstructions counsel wanted, provided counsel with draft instructions, and solicited objections to and requests for additional instructions. After t he military judge provided the instructions to the court members , he again asked counsel if they objected to any of the instructions , and received none . Because trial defense counsel affirmatively declined to object to the findings instructions and offered no additional instructions, Appellant expressly and unequivocally acquiesced to them, constituting waiver. S ee United States v. Rich , 79 M.J. 472, 476 (C.A.A.F. 2020) (citation s omitted). Finding waiver, w e next consider whether t o pierce Appellant’s waiver relating to the instructions. Having reviewed the entire record, and mindful of our mandate to “approve on ly that which ‘should be approved
, ’” we have determined to leave intact Appellant’s waiver of the alleged error. See Chin , 75 M.J. at 223.

C. Legal and Factual Sufficiency Appellant contends that the evidence is legally and factually insuff i c i ent to support the findings of guilty for both specification s. As discussed below , we find the evidence support ing Appellant’s conviction for possession of child pornography is both legally and factually sufficient

. However, w e find the evidence to support Appellant’s conviction for distribution of child pornography is legally and factually insufficient

. 1. Law Issues of legal and factual sufficiency are reviewed de novo

. United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted)

. “Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. ” United States v. Rodela , 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing United States v. Dykes , 38 M.J. 270, 272 (C .M.A. 1993)), rev. denied
, 82 M.J. 312 (C.A.A.F. 2022)

.United States v. Nestor , No. ACM 4 0 2 50

13 “The test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Robinson , 77 M.J. 294, 297

– 98 (C.A.A.F. 2018) (quoting United States v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States

v. Wheeler , 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Lips , 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d , 77 M.J. 289 (C.A.A.F. 2018).“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference fro m the evidence of record in favor of the prosecution.” United States v. Barner , 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). As a result, “[t]he standard for legal sufficiency involves a very low threshold to sustain a conviction.” United States v

. King , 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration in original) (citation omitted ), cert. denied , 139 S. Ct. 1641 (2019)

. The test for legal sufficiency “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inference s from basic facts to ultimate facts.” Unite d States v. Oliver
, 70 M.J. 64, 68 (C.A.A.F. 2011) (internal quotation marks omitted) ( quoting Jackson v. Virginia, 443 U.S. 307, 319 (197 9 ) ).

“ The test for factual sufficiency is ‘ whether, after weighing the evidence in the record of trial and making allowances for not hav ing personally observed the witnesses, ’ [ this ] court is ‘ convinced of the [appellant]’s guilt beyond a reasonable doubt. ’ ” U

nited States v. Reed
, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting U nited States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987) ) . “In conducti ng this unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] own independent determination as to whether the evidence constitutes proof of each req uired element beyond a reasonable doubt.’” Wheeler , 76 M.J. at 568 (alteration in original) (quoting Washington , 57 M.J. at 399).As an evidentiary standard, proof beyond a reasonable doubt does not require more than one witness to testify “as long as the members find that the witness’s testimony is relevant and is sufficiently credible.” United States v. Rodriguez

- Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006).

To find Appellant guilty of possession of child pornography in violation of Article 134 , UCMJ, the members were required to find the following elements beyond a reasonable doubt : (1) that between on or about 8 December 2019 and on or about 9 July 2020, at or near Kadena Air Base, Okinawa, Japan, Appellant knowingly and wrongfully possessed c hild pornography , that is
, visual depiction s of minor s , or what appear s to be minors
, engaging in sexually explicitUnited States v. Nestor , No. ACM 4 0 2 50

14 conduct; and ( 2) that under the circumstances , Appellant ’s conduct was of a nature to bring discredit upon the armed forces. See Manual for Courts

- Martial, United States (2019 ed.) ( MCM ) , pt. IV, ¶ 95

. b .( 1 ). To find Appellant guilty of distribution of child pornography in violation of Article 134 , UCMJ, as charged, the members were required to find the following elements beyond a reasonable doubt: (1) that between on or about 8 December 2019 and on or about 9 July 2020, at or near Kadena Air Base, Okinawa, Japan, Appellant knowingly and wrongfully distributed child pornography, that is
, a visual depiction of a minor, or what appear s to be a minor, engaging in sexually explicit conduct; and (2) that under the circumstances, Appellant ’s conduct was of a nature to bring discredit upon the armed forces

. See MCM , pt. IV, ¶ 95.b.( 3 ).Child pornography is “material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.” MCM
, pt. IV
, ¶ 95

. c.(4). “Sexually explicit conduct” means actual or simulated: (a) sexual intercourse or sodomy, including genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.
MCM
, pt. IV
, ¶ 95

. c.(10). A minor is “ any person under the age of 18 years.” MCM
, pt. IV
, ¶ 95

. c.(7).

To be convicted of possession or distribution of c hild pornography, a n appellant must be “ aware th at the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness may be inferred from c ircumstantial evidence such as the name of a computer file or folder . . . [or] the number of images possessed ” by the appellant. MCM
, pt. IV
, ¶ 95

. c.(5). Our court recently addressed service discrediting conduct as the terminal element:

“ Whether any given conduct [is service discrediting] is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from anyUnited States v. Nestor , No. ACM 4 0 2 50

15 particular course of action. ” “ [T]he degree to which others became aware of the accused ’ s conduct may bear upon whether the conduct is service discrediting, ” but actual public knowledge is
not a prerequisite. “ The trier of fact must determine beyond a reasonable doubt that the conduct alleged actually occurred andmust also evaluate the nature of the conduct and determine beyond a reasonable doubt that [the appellant] ’ s conduct would tend to bri ng the service into disrepute if it were known. ”

United States v. Heppermann
, 82 M.J. 794
, 801 (A.F. Ct. Crim. App. 20 22 ) (alterations in original) (quoting United States v. Phillips
, 70 M.J. 161 , 165 , 166 (C.A.A.F

. 2011) ) (additional citation omitted)
, rev. denied
, 83 M.J. 103 (C.A.A.F. 2022)

. 2. Analysis

a. Wrongful Possession of Child Pornogr aphy (Specification 1) Appellant contends his conviction for possession of child pornography is both legal ly and factually insufficient. Specifically
, Appellan t argues (1) the deleted files had no content ; (2) the spanking video d id not constitute child pornography ; (3) compelling circumstantial evidence indicated that any possession of child pornography was unknowing ; and (4) no evidence was presented to prove the terminal element of the offense . We find the evidence legally and factually sufficient and that no relief is warranted.

O ur review of the reco rd finds that the Government introduced convincing evidence for a rational factfinder to find beyond a reasonable doubt Appellant guilt y of possessing child pornography between 8 December 2019 and 9 July 2020

. At t rial, the Government provided sufficient e vidence that Appellant possessed three videos containing child pornography , specifically the “ Maladolescenza” video and the videos of a preteen girl masturbating in a bathtub. We address the spanking video in more detail below. Most significant was the testimony of t he Government ’s digital forensic expert (Mr. TB) who testified that the videos were found on two password

- protected devices owned and primarily used by Appellant . Furthermore, the expert testified his forensic examin ation showed that Appellant individually downloaded the three videos on separate days and saved the videos to a separate folder on his comp u ter. Furthermore, he testified that Appellant interacted with the videos by clicking on the file s , opening the file s , and moving the files to a separate folder

— thus creating a “link file” on the computer’s directory. The three videos in question plainly show visual depictions of minor s , or what appear to be minors
, engaged in sexually explicit behavior. The G overnment also presented other evidence in the form of multiple files and videos of child erotica, sp l iced video clips of childrenUnited States v. Nestor , No. ACM 4 0 2 50

16 in various stages of undress , and deleted files with filenames indicative of chi ld pornography on Appellant’s devices . This circumstantial evidence allowed the members to find Appellant had a sexual interest in child ren and a motive to possess child pornography , and helped establish that Appellant knowingly possessed child pornography

. We next turn to Appellant’s more specific contentions. First, Appellant contends that he cannot be sure which videos he was ultimately convicted of possessing, and that it is possible that he was convicted of possessing the deleted files that did not have any content on the basis of their filenames . We find Appellant’s argument unpersuasive

. U nder the general verdict rule , this court does not require the factfinder in a child pornograp hy case to specif y which vide os generated the guilty verdict

. See United States v. Piolunek , 74 M.J. 107, 111

– 12 (C.A.A.F. 2015) (citing United States v. Rodriguez , 66 M.J. 201, 204 (C.A.A.F. 2008) ) ( additional citations omitted) ( discussing the deep

- rooted common law rule that when a factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence was sufficient with respect to any one of the acts charged)

. Here, the members did not have to specify wh ich videos constituted child pornography, as long as they found that one of the videos amounted to child pornography. Appellant also argues there was compelling circumstantial evidence that demonstrated his possession of child pornography was unknowing . Specifically, Appellant argues the fact that only 2 of the 27 devices seized contain ed child pornography is compelling circumstantial evidence that his possess ion of the three videos was unknowing. A ra tional fact finder could have determined that Appellant knew he possessed child pornography , based on the testimony of the Government’s forensic examiner and the substantial other

- acts evidence offered at trial that tended to show Appellant had a sexual interest in children and a motive to possess child pornography

. Appellant also states the Government did not show that he interacted with the three vid e os

. H owever, the testimony from the Government’s forensic ex pert disputes such an argument and
, in fact
, provides direct evidence that Appellant did interact with videos. Finally, Appellant argues the Government offered no evidence to support that Appellant’s possession of child pornography “was of a nature to brin g discredit upon the armed forces.” Appellant state s that he raises this issue as an attempt to have our s uperior c ourt reevaluate its decision in Phillips

. In Phillips , the United States Court of Appeals for the Armed Forces found that for an offense charged in violation of Clause 2 of Article 134, UCMJ, “proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt tha t, under all the circumstances, it was of a natureUnited States v. Nestor , No. ACM 4 0 2 50

17 to bring discredit upon the armed forces.” Phillips
, 70 M.J. at 163. Appellantclaims the factfinder could not just infer from the facts and circumstances surrounding the offense that the Clause 2 language was met beyond a reasonable doubt in his case. He claims the factfinder was required to be presented with direct evidence. We begin our analysis by noting we disagree with Appellant’s contention that only direct evidence is sufficient to prove the termina l element of the charged offense. I n this case, the members were presented with evidence that Appellant was a member of the United States Air Force, living in a local community off

- base in Japan, and t hat Appellant used a civilian Japanese ISP to find and download child pornography. The evidence also demonstrated that Appellant provided his military rank and work location on Kadena Air Base when he signed up for Internet service

. Additionally, the evidence showed local Okinawan police participated i n the la wful search of Appellant’s residence
, where two laptops were seized that contained evidence of child pornography

. T he factfinder could use this evidence to determine whether Appellant’s conduct tended to discredit the service. Moreover, the factfinder could consider evidence of the crimes themselves in determining whether Appellant’s conduct tended to discredit the service, including the content of the videos found on Appellant’s laptop

. See United States v. Anderson
, 6 0 M.J. 54 8
, 55 5 ( A.F. Ct. Crim. App. 20 04 ) (finding, afterits review of graphic images of child pornography, that they “remove any reasonable doubt that they are .

. . of a nature to bring considerable discredit upon the armed forces”); see also United States v. R ichard
, 82 M.J. 473 , 477

– 79 (C.A.A.F. 2022) (finding evidence that only tends to prejudice good order and discipline is not sufficient proof of that element, in contrast to conduct of a nature to bring discredit upon the armed forces in a case involving Ar ticle 134, UCMJ ). We find the members had a sufficient basis from the evidence introduced at trial to determine beyond a reasonable doubt that Appellant’s conduct was of a nature to bring discredit upon the armed forces

. In conclusion, w hen viewing the evi dence offered at trial in the light most favorable to the Government
, a r ational factfinder could readily f ind the essential elements of the offense

— possession of child pornography

— for which Appellant was convicted b eyond a reasonable doubt . We therefore conclude the evidence is legally sufficient to support Appellant’s conviction. See Robinson
, 77 M.J. at 297−98. Additionally, g iving the appropriate deference to the trial
court ’ s ability to see and hear the witnesses, and after our own inde pendent review of the record , we ourselves are convinced of Appellant’s guilt beyond a reasonable doubt. See Reed
, 54 M.J. at 41.United States v. Nestor , No. ACM 4 0 2 50

18 b. Wrongful Distribution of Child Pornography (Specification 2) Appellant alleges the finding of guilty for wrongful distribution of child pornography is both legally and factually insufficient. Appellant argues
, inter alia
, that the spanking video does not constitute child pornography in that it does not depict a minor engaged in sexually explicit conduct . We agree.

Our review of the evidence offered at trial, including our objective review of the spanking video , finds that the video itself does not depict a minor engaged in sexually explicit conduct as defined in the MCM , t o include sadistic or masochistic abuse

. As desc ribed earlier, t he video in question depicts an adult male spanking the bare bottom of what appears to be a child

. The view of the camera is from the side. N othing in the video suggest s that either party in the video is receiving any sexual gratification from the spanking

. Therefore,viewing the evidence offered at trial in the light most favorable to the Government, we conclude that a rational factfinder could not find the essential elements

— that Appellant wrongfully distributed child pornog raphy, that is a visual depiction of a minor, or what appear s to be a minor, engaging in sexually explicit conduct

— beyond a reasonable doubt. Furthermore, after our own independent review of the record, we ourselves are not convinced of Appellant’s guilt b eyond a reasonable doubt. Accordingly, we conclude Appellant’s conviction for distribution of child pornography is both legally and fa ctually insufficient and we set aside Appellant’s conviction of that offense

. Having set aside Appellant’s conviction for Specification 2, we have considered whether we may reliably reassess Appellant’s sentence in light of the factors identified in United States v. Winckelmann , 73 M.J. 11, 15

– 16 (C.A.A.F. 2013). We conclude that we can.
First, we find t h at set ting aside Appellant’s conviction for distribution of child pornography results in a dramatic change to the penalty landscape and Appellant’s exposure
, as our action reduces the maximum imposable term of confinement for the combined convictions from 30 years t o 1 0 years; the remaining elements of the maximum punishment are unchanged. Here Appellant’s distribution of child pornography c onviction carried the highest maximum term of confinement

— 2 0 years

. T he military judge imposed 1 6 months ’ confinement for that o ffense , to be served concurrent ly with the term of confinement for the possession of child pornography conviction . The possession conviction carried a 10

- year maximum term of confinement
, for which the military judge also imposed 1 6 months ’ confinement

. See MCM , pt. IV, ¶ 93 .d.
That said, w e find the remaining Winckelmann factors favor reassessment. First, Appellant was sentenced by a military judge alone
, who, as stated above, imposed specific terms of confinement for each offense

— 16 months

— to beUnited States v. Nestor , No. ACM 4 0 2 50

19 served concurrently

. Next, we find t he affirmed offense fairly “capture [s] the gravamen of [the] criminal conduct included within the original offenses
, ” namely conduct involving child pornography. Winckelmann , 73 M.J. at 16. Finally, the remaining offense is a type with which the judges of this court have “experience and familiarity.” Id. Accordingly, w e are confident we can determine what sentence the military judge would have imposed had Appellant been convicted of only the possessio n of child pornography offense

. See id . at 15 (holding CCAs may reassess a sentence if it “can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity”) (quoting United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986)). Based on our experience and familiarity, and t aking all factors into consideration, we conclude that the military judge would have imposed a sentence of at least 16 months ’ confinement
, a bad

- conduct discharge
, and reduction to E

1 for Appellant’s possession of child pornography conviction . Accordingly, we reassess the sentence to consist of a bad

- conduct discharge , confinement for a total of 16 months, and reduction to the grade of E

- 1.

III. C ONCLUSION The finding o f guilty as to Specification 2 of the Charge is SET ASIDE

. Specification 2 of the Charge is DISMISSED WITH PREJUDICE

. We reassess the sentence to a bad

- conduct d ischarge , confinement for 16 months, and reduction to the grade of E

- 1. The remaining finding s of guilty and the sentence, as reassessed, are correct in law and fact, and no other error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, t he remaining finding s and the reassessed sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court